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IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - x DAVID LEON RILEY, Petitioner v. CALIFORNIA : : : : No. 13-132

- - - - - - - - - - - - - - - - - x Washington, D.C. Tuesday, April 29, 2014

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:34 a.m. APPEARANCES: JEFFREY L. FISHER, ESQ., Stanford, Cal.; on behalf of Petitioner. EDWARD C. DUMONT, ESQ., Solicitor General, San Francisco, Cal.; on behalf of Respondent. MICHAEL R. DREEBEN, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; for United States, as amicus curiae, supporting Respondent.

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C O N T E N T S ORAL ARGUMENT OF JEFFREY L. FISHER, ESQ. On behalf of the Petitioner ORAL ARGUMENT OF EDWARD C. DUMONT, ESQ. On behalf of the Respondent ORAL ARGUMENT OF MICHAEL R. DREEBEN, ESQ. For United States, as amicus curiae, supporting Respondent REBUTTAL ARGUMENT OF JEFFREY L. FISHER, ESQ. On behalf of the Petitioner 56 46 27 3 PAGE

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P R O C E E D I N G S (10:34 a.m.) CHIEF JUSTICE ROBERTS: We'll hear argument

first this morning in Case 13-132, Riley v. California. Mr. Fisher? ORAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF PETITIONER MR. FISHER: please the Court: This case involves applying the core protection of the Fourth Amendment to a new factual circumstance. It has always been the case that an Mr. Chief Justice, and may it

occasion of an arrest did not give the police officers authority to search through the private papers and the drawers and bureaus and cabinets of somebody's house, and that protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their pockets. JUSTICE KENNEDY: Just -- just to test the

principle for why the police can search and seize some -- some objects. Consider a gun. The arrestee has Is

a gun on his person and the police take the gun.

part of the reason for that seizure to obtain evidence

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of the crime or is it just for the safety of the officer and the safety of the community? MR. FISHER: Well, what this Court said in

Robinson at Page 235 is the reason supporting the authority for a search incident to arrest are the two Chimel factors, which are gathering evidence to prevent its destruction, and officer's safety. JUSTICE KENNEDY: Now --

What about gathering For instance, with The -- the gun

evidence in order to make the case?

the gun, could they take fingerprints?

is in the police station where the arrestee is being booked. A, could they take fingerprints? B, could they

copy the serial number?

C, could they see how many They obviously have to

shells were left in the chamber? empty it for safety purposes.

All for the purpose of

building the case, of -- of obtaining evidence? MR. FISHER: every day. Yes, of course that's done

Once the gun is in the police -- the police

department's lawful possession, I think Edwards says that they can do all that. JUSTICE KENNEDY: So -- so if -- if the

proposition then, if the principle then is that some objects that are obtained from the arrestee can be examined in order to build the State's case, is that at least a beginning premise that we can accept in your

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case, although, obviously, there are problems of the extent and intrusiveness of the search that are -- are your case, but not in the gun hypothetical. MR. FISHER: Well, Justice Kennedy, the If

Court has never described that as one of the things. you want to think about this case the way you thought about the automobile search in Gant, it would be a beginning premise; but I think you're right, that even

if that were a beginning premise, it would be only that, a beginning. In Footnote 9 in Edwards, this Court said

that any search incident to arrest still has to satisfy the Fourth Amendment's general -- general reasonableness. JUSTICE KENNEDY: I think you're right that

Gant is probably the best statement in support of the principle that I've -- I've suggested, and then you might say, well, that's limited to automobiles -MR. FISHER: JUSTICE KENNEDY: where we started. MR. FISHER: Right. And there's important Right. -- and then we're back

things to understand if you want to start thinking about Gant, because both in terms of its history and its modern application, it's dramatically different from what we have here.

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JUSTICE ALITO:

Well, Mr. Fisher, before we

do that, have you been accurate in what you said about Robinson and about the Court's cases? was quoted in Robinson, the Court said: In Weeks, which "The right,

always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime." Is that historically inaccurate? repudiate that? MR. FISHER: No, Your Honor. What Weeks Do you want us to

said, you quoted it, fruits and instrumentalities of the crime have always been something that could be seized from a person. Now, Weeks, of course, as this Court And there was that

said in Robinson itself, was dicta.

historical authority to take fruits and evidence -- I'm sorry -- fruits and instrumentalities of the crime. JUSTICE SCALIA: Did it say Which did it say?

instrumentalities or evidence? MR. FISHER: JUSTICE SCALIA: evidence.

Weeks used -Because Justice Alito said Is

You -- you changed it to instrumentality.

one of you wrong? MR. FISHER: Weeks uses the word "evidence,"

but, Justice Scalia, because it was not at issue in that case, the -- the Bishop treatise that you cited in your

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Thornton concurrence talks about tools and instrumentalities. Now, I don't think we have to debate that here, because even if we're in a world where the police can seize some evidence and keep it and use it for the prosecution simply for that reason, even if they don't fear destruction, there are still very, very profound problems with searching a smartphone without a warrant, because even under the Robinson rule, this Court has recognized, for example, when it comes to blood draws, search -- something like a strip search that might occur at the scene, there are limits even to the Robinson rule. So it brings us -JUSTICE ALITO: Well, smartphones -But let me

smartphones do present difficult problems. ask you this:

Suppose your client were an old-school

guy and he didn't have -- he didn't have a cell phone. He had a billfold and he had photos that were important to him in the billfold. arrest. He had that at the time of

Do you dispute the proposition that the police

could examine the photos in his billfold and use those as evidence against him? MR. FISHER: No. That's the rule of

Robinson, that any physical item on a arrestee can be seized and inspected and then used as evidence if it's

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useful evidence.

We draw a line. Yes.

-What is the difference

JUSTICE ALITO:

between looking at hardcopy photos in a billfold and looking at photos that are saved in the memory of a cell phone? MR. FISHER: The difference is digital Physical items at

information versus physical items.

the scene can pose a safety threat and have destruction possibilities that aren't present with digital evidence. What is more, once you get into the digital world, you have the framers' concern of general warrants and the -the writs of assistance. JUSTICE ALITO: Well, how does that apply --

how does that apply to these hardcopy photos in the billfold? They don't present a threat to anybody. And

I don't see that there's much of a difference between -the government argues there's a greater risk of the destruction of digital evidence in a cell phone than -than there is in the photos. So I don't quite

understand how -- how that applies to that situation. MR. FISHER: thing at a time. Well, let me take those one I take it the theory of Robinson, this

is the theory the government itself propounded, is that any physical item, because it contained a razor blade or a pin or anything, needs to be inspected to be sure.

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And so you have a categorical rule because of the ad hoc nature of arrests that police don't have to distinguish physical items one from the other. JUSTICE KENNEDY: Well, but the -- but in

the wallet -- we'll just stick with Justice Alito's hypothetical -- they find a business card or something which shows a car rental service. card over and read it? an explosive. card. Can they turn the

They're not looking for a pin or

They're trying to read what's on the

Can they do that? MR. FISHER: I think they can, if nothing

else, under plain view once it's in their hand, Justice Kennedy. But I really don't want to fight -No, they turn -- they turn

JUSTICE KENNEDY: the card over. MR. FISHER: categorical rule.

I think that is fine under the I think what you have in Robinson is

a categorical rule that obviates these exact difficult case-by-case determinations. You can make an argument,

and if I needed to, if it were a diary case or a billfold case, you might be able to make an argument, but I think the Court wisely decided under Robinson that we need a categorical rule that's easily administrable in the field. Now, when you have digital evidence, the

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categorical rule, we submit, cuts exactly in the opposite direction. Because digital information -- even

the notion of flipping through photos in a smartphone implicates vast amounts of information, not just the photos themselves, but the GPS locational data that's linked in with it, all kinds of other information that is intrinsically intertwined in smartphones. CHIEF JUSTICE ROBERTS: Including

information that is specifically designed to be made public. I mean, what about something like Facebook or a There's no real -- there's no -- any

Twitter account?

privacy interest in a Facebook account is at least diminished because the point is you want these things to be public and seen widely. MR. FISHER: Well, Mr. Chief Justice -So I guess my

CHIEF JUSTICE ROBERTS: question would be:

Could you have a rule that the

police are entitled to search those apps that, in fact, don't have an air of privacy about them? MR. FISHER: I think that would be And

extraordinarily difficult to administer that rule. let me tell you why.

Because most of the information on Much of it is just, like the

smartphones is private.

photos in this case, just kept on somebody's phone and not shared with anybody. Even a Facebook account is a

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limited universe of people who have access to it. You're right that -CHIEF JUSTICE ROBERTS: limited. More -- more or less

I mean, you know, maybe it's 20 people; maybe But it's certainly not private

it's a hundred people.

in the sense that many of the other applications are. MR. FISHER: I think it's fair to say you

have a sliding scale and there's some stuff on a phone that might be posted on the Internet, for example. The

difficulty with that case, if you wanted to address it in a future case, would be the intertwined nature of information on a phone. So looking at those photos in a

smartphone account will be linked to the contacts inside the phone; it will be linked to GPS information inside the phone. All of this information is intertwined and I

think you'd have a difficult administrability problem if you wanted to create some sort of rule like that. Now, remember, the government might try to deal with that problem differently by saying information in the cloud, so to speak, is not accessible to officers. We submit that just further would compound

the difficulty of applying a rule in this circumstance. JUSTICE ALITO: But do you think in this

case we have to decide whether all the information that may be available in a smartphone can be examined by the

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police when the owner of the phone is arrested or can we just focus on the particular evidence that was admitted in your client's trial? MR. FISHER: Well, the way you've phrased

the question, I think that's what -- that's the first cut at this, is looking at the particular pieces of evidence here, which are photos and videos. But we

don't think you can write an opinion that would distinguish those from anything else on a -- almost anything else on a smartphone. I mean, the State's

argument here is that those are not, quote, "fundamentally different" from other things that people would carry around. JUSTICE KENNEDY: Do you think you could

have obtained a warrant -- or that the police could have obtained a warrant in this case? MR. FISHER: Kennedy. JUSTICE KENNEDY: MR. FISHER: so. JUSTICE KENNEDY: Well, then the evidence All right. They had plenty of time to do In all likelihood, yes, Justice

that's seizable under the warrant is -- is reasonable, and Justice Alito points out the fact that some of this evidence is -- is reasonable. If there's a -- there's a

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limitation with reference to the way the police behaved, as Justice Alito points out, it's limited just to this evidence. MR. FISHER: Well, let me say a couple

important things about the warrant requirement and return to Justice Alito's question. This Court has said

time and again that the mere fact the police could have gotten a warrant but didn't does not excuse a Fourth Amendment violation. Let me say a couple things about

the warrant requirement and then return to Justice Alito. JUSTICE KENNEDY: Well, but it -- it just

goes to the fact that this -- that this is searchable under Fourth Amendment standards. MR. FISHER: Kennedy. With a warrant, Justice

And let me talk about why a warrant is so First of all, it interposes a neutral

important.

observer in between the citizen and the police officer. Perhaps more importantly, it does two very big things. One is it can trigger the Fourth Amendment's particularity requirement so that the magistrate can say: This is what you can look at and what didn't.

Remember, in this case the prosecution ultimately introduced photos and videos, but that's not what the detective testified to at trial as to the scope of his

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search.

He said, at JA-11, we looked at a whole lot of

stuff on the phone and that's just what, in his words, "caught his eye." JUSTICE GINSBURG: work with a magistrate? So how -- how would it You recognize -- you just told A

Justice Kennedy -- that a warrant could be obtained. warrant for what? What would the police have to show? So they -- they have

And let's take your very case.

seized, which is proper, seized the phone, they've secured it, and now they want to search it. apply for a warrant. say? MR. FISHER: We give an example of a warrant I believe it's So they

And what would the warrant have to

in the footnote in our reply brief. footnote 3, Justice Ginsburg.

And there are many more

available on the web from States that already require warrants. What they do is they say -- the police

officer testifies, perhaps somewhat like he testified here at the suppression hearing, I suspected this fellow was in a gang and -- and I believe gang members keep certain kinds of things on their phone, this is the kind of crime that we're investigating, and therefore these particular files within the phone are likely to obtain evidence. And then what happens is the warrants say Here's the things you can look at;

with particularity:

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here's what you can't.

More importantly, Justice

Ginsburg, a warrant requirement -JUSTICE SCALIA: Well, I thought you say

that's very -- you've told us that that's -- that's hard to figure out, what you can and what you can't. But

it's easy for a magistrate, but -- but impossible for a -- for an arresting officer? MR. FISHER: I think much easier for a

magistrate at some remove than an officer under the -under the stresses in the field. JUSTICE SCALIA: MR. FISCHER: be perfect. world -CHIEF JUSTICE ROBERTS: MR. FISHER: Yes. -- on the same lines If I could just -Now, Justice Scalia --

Well, but --- I agree, it's not going to

And so let's look at what happens under our

CHIEF JUSTICE ROBERTS: as -- as Justice Scalia.

The point you make elsewhere

in your brief and argument is that the cell phone or the -- the smartphone has everything. MR. FISHER: Right. It's got the

CHIEF JUSTICE ROBERTS: person's whole life.

Well, if you're arresting somebody

on the grounds of suspicion that he's a gang member and you have evidence to support that, what part of the

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smartphone is not likely to have pertinent evidence? What application is not? I mean, here you've got I just

pictures, you've got videos, you've got calls.

-- I guess it's similar to what other issues have been raised. I don't know what a magistrate is supposed to

put in the warrant. MR. FISHER: his online dating app -CHIEF JUSTICE ROBERTS: You don't think his I would say his banking app,

banking app -- his banking app is going to say on this day he deposited $10,000 into his account, and then that's going to coincide with a particular drug deal. MR. FISHER: Well, Mr. Chief Justice, those But what

arguments can be made on an app-by-app basis.

happens is -- this is the benefit of our rule as opposed to the government's. What the government says is let

the officer look and then have a back-end hearing where you just suppress all the stuff that he wasn't supposed to look at once you apply particularity requirements. Under our rule, once the officer has the warrant, Leon kicks in and so you don't have to have all these hearings in district courts, because once an officer does a proper search according to the corners of a warrant, you don't have to have the kind of suppression here.

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And there's one other very important thing that goes into a warrant which might have been glossed over too quickly in the briefs. It's not just what can The retention of

be looked at; it's how it can be kept.

information raises extraordinary Fourth Amendment concerns. My understanding in California is, at least

for some crimes, it's not just that they're downloading the information and looking at it for the crime of arrest, but they're keeping this information in databases, ever-growing databases of every cell phone that they've ever seized. CHIEF JUSTICE ROBERTS: What if you have a

device that doesn't have the broad information that a smartphone has, but only a very limited, like a Fitbit that tells you how many steps you've taken, and the defendant says, I've been in my house all afternoon, and they want to check and see if he's walked 4 miles. not his whole life, which is a big part of your objection. Is that something they can look at? I think probably not. And I It's

MR. FISHER:

think this is the way the categorical rule in Robinson, where it sweeps in the kind of hypotheticals we were talking about in one direction. I think a categorical

rule in the other direction for digital information would sweep in the Fitbit. I mean, obviously, I don't

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have to win that argument today, but I think that's how you would approach that question. Remember, the Fitbit -- and this is true even more so of smartphones -- tells you just the kind of information the Court was very concerned about in Kyllo. It tells you -- modern smartphones work the They work the appliances They also monitor the

inside of people's house.

and -- and they have cameras. inside of people's bodies. JUSTICE ALITO:

What if the phone in this So it had the

case was an old-fashioned flip-phone?

capacity to take pictures, but a much more limited memory. Would it -- would it be a different case? Well, I think you may want to

MR. FISHER:

-- that will be part of your conversation in the next case perhaps. I think the easiest way to decide the Digital evidence

case right now in 2014 is simply say:

kept on modern cell phones are different than physical items. I don't think it's really worth going back in

time to the most rudimentary device and having that argument. JUSTICE ALITO: What if the person had on

his person a compact disk with photos saved on that? MR. FISHER: I think that might be the same Remember, the -- the

kind of case as you have now.

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phone in this case had a removable memory card, as many still do, which by the way we were going to talk about the destruction of evidence. That's one answer to the It couldn't possibly

destruction of evidence problem.

have arisen with respect to the evidence at issue because it was on a removable memory card that couldn't be erased remotely or password protected. Now, we've given lots of arguments in the brief that explain why the government's arguments as to wiping simply don't stand up. JUSTICE SOTOMAYOR: And -Mr. Fisher, would you -You

an earlier question, you didn't finish the answer.

were describing a difference between the downloading by police into databases that they keep forever. What

happens with materials that are returned pursuant to a search warrant? MR. FISHER: JUSTICE SOTOMAYOR: understood your -MR. FISHER: Right. So I take it that the Are they precluded from doing that? No. I wasn't sure I

ordinary rule is if the police lawfully seize evidence in the physical world, if it's a -- if it's a physical item, it might at some point have to be returned to the owner of it. But if it's something that can be made a

photocopy of or a photo, it remains in police files as

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lawfully obtained information they can use indefinitely into the future. You have real problems, however, when you apply that typical rule to digital information, because now -- again, what I understand -- and the government itself -- the Federal Government in Footnote 3 of its reply brief in Wurie acknowledges that it's keeping in an ever-growing Federal database at least some of the information seized from smartphones. JUSTICE SOTOMAYOR: I'm sorry. I don't know

that you've answered my question. MR. FISHER: understand it. JUSTICE SOTOMAYOR: Which -- can they do the I'm sorry. Maybe I didn't

same thing once a search warrant is -MR. FISHER: Oh. No. Well, not

necessarily, because the beauty of a search warrant is it can delineate retention rules. It can say here's --

here's how long you're allowed to keep the information, here's who's allowed to look at it and who's not. it can -JUSTICE SOTOMAYOR: Frankly, I have to tell And

you, I don't ever remember a prosecutor coming to me with that kind of delineation. MR. FISHER: Well, I think that, Justice

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Sotomayor, that is what is starting to now happen in the digital world, because we just have new and different concerns that had arisen -- than had arisen in the past. JUSTICE KAGAN: Mr. Fisher, would there be

exigencies that would allow police to look at cell phones? And if so, what would those exigencies be? Absolutely. There -- there

MR. FISHER:

would be times at the scene where exigencies would allow it. First of all, the two officer safety arguments the

other side makes about a hypothetical bomb or a confederate ambush, as this Court already recognized in Chadwick, would give exigent circumstances. The concern

about remote wiping we think, and as the experts have described in the amicus brief filed by EPIC and many others, we don't think would ever arise -- give rise to a situation where that was a legitimate concern, but in a very odd world, yes. JUSTICE SCALIA: first exigent circumstances. I don't understand your When there is a bomb, but

you can't -- you don't know whether there's a bomb until you look in the phone. Whether -- whether his

associates are on the way to, you know, to kill the officer and -- and release their confederate, you don't know until you look into the phone. So how -- you know,

how can that possibly be an exigent circumstance?

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MR. FISHER:

Well, I think surrounding facts

and circumstances -- in Footnote 9 in Chadwick, what the Court said, dealing with a locked briefcase where you'd have the same problem, Justice Scalia, surrounding facts and circumstances might indicate. There's a hypothetical, I believe it's on page 1 of the amicus brief filed by the State investigative agencies, that I think gives a classic textbook example of how exigent circumstances might apply. JUSTICE SCALIA: It seems to me it would

almost never -- you would never be able to say, you know, surrounding circumstances give me reason to suspect that there's a bomb in the phone. MR. FISHER: JUSTICE SCALIA: No. I -Give me reason to suspect

that his confederates are on the way. MR. FISHER: I think you're right that

that's going to be an extraordinarily rare circumstance. All I'm saying is if you had that extraordinarily rare circumstance, you would not need to get a warrant. JUSTICE KENNEDY: There -- there is not much

authority that I could find, if the lawyer is arrested and -- and they want to read his whole briefcase or you want to read a year's diary. And you cite -- I think

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it's page 7 of your brief -- the Learned Hand 1916 case. Is that about the best discussion you -- you can find? I didn't find anything much different. MR. FISHER: and low as well -JUSTICE KENNEDY: MR. FISHER: Right. -- and did not find cases And there's Judge Justice Kennedy, we looked high

involving briefcases full of documents.

only one or two stray mentions of a diary. Friendly also mentions the diary situation. JUSTICE KENNEDY:

Because it's important if

we're going to try to formulate some standard which limits the extent of the search, and that's one of -that's one of the problems in this case. If -- if say

we rule for the government in its case, maybe it's not quite fair to ask you, but if we rule for the government in its case in Wurie, in the Federal case -MR. FISHER: JUSTICE KENNEDY: Yes. -- and there's no -- it's

not an exigent circumstances, is there some standard where we could draw the line which would still result in a judgment in -- in your favor? a fair question. Maybe that's not quite

You're not -- you're not answering --

you're not arguing the -- the government's case. MR. FISHER: I don't want to tread on both

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lawyers in that case, but certainly in my case, we have an exploratory search where not even the State has contended the amount of information looked at is equivalent to what somebody could have carried around in the old days. Can I say something? CHIEF JUSTICE ROBERTS: something first. MR. FISHER: (Laughter.) CHIEF JUSTICE ROBERTS: rings, can the police answer it? MR. FISHER: Mr. Chief Justice. addressed them. There are cases on that, Obviously, this Court hasn't If -- if the phone Okay. I'm going to say

All the cases we've found are cases

where the police already had a warrant in hand and they've been held that, yes, the police officers can answer the phone in that circumstance. Unquestionably,

the police officers could look at the screen. JUSTICE SCALIA: what? Excuse me. A warrant for

A warrant for examining the phone? MR. FISHER: JUSTICE SCALIA: For somebody's arrest. For somebody's arrest.

Well, how does that extend to your ability to answer his phone?

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MR. FISHER: Scalia.

No, I'm sorry, Mr. Justice

I think also in -- to -- to effectuate an

arrest and -- and an immediate search of the area. Now, certainly you could look at the caller ID coming through because that would be in plain view. But if I can return to Justice Kennedy's question about the diary. Because there's a couple of important

aspects to that I hope to be able to draw out. The reason I think that you don't find diary cases when you look for them is because people hardly ever carry a diary outside the home with them. It was

kept in a private drawer in the bedroom or wherever it might be kept, and in the highly, highly unusual circumstance where somebody did, you might have a hard case. This is an -- this is the opposite world. The modern reality of smartphones is that it is an indispensable item for everyday life of a modern professional and, indeed, most anyone. You can't leave

the house without it and be -- consider yourself to be responsible and safe. And so you take -- to take a

world where the police might try to say, we can get the stray diary because of the importance of the categorical rule under Robinson and try to apply that into a world where everybody has everything with them at all times --

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JUSTICE KENNEDY:

Well, including the

criminals who are more dangerous, more sophisticated, more -- more elusive with cell phones. that's the other side of this. MR. FISHER: Well, Justice Kennedy, the That's the --

Fourth Amendment has -- has a balance already built in in that respect. We're not saying they can't look at We're just saying that when they

digital information.

seize it, they can freeze the contents and then go get a warrant and search what they're allowed to search and keep it under the rules of that warrant. CHIEF JUSTICE ROBERTS: Is it significant

in -- in this case that the information was not protected by a password? MR. FISHER: side -CHIEF JUSTICE ROBERTS: That doesn't -- that No, I don't think either

doesn't affect the expectation of privacy? MR. FISHER: If the other side were making

an argument that this wasn't even a search, then I think that might be an argument they would deploy. But I

think, and I don't want to speak for the government, but I think that they also agree that password protection doesn't matter. And it certainly doesn't matter under I mean,

their argument as to what information they get.

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their position is if we seize a corporate executive's smartphone at the scene that is locked and protected under password, if we can get that information out back at our lab, we get it all and we don't have to ask for a warrant and we can keep it as long as we want. CHIEF JUSTICE ROBERTS: No. I know they

argue that it doesn't matter, but I'm just wondering if your position is weakened by the fact that the individual did not seek the greater protection of a password. MR. FISHER: No, I don't think so. People

don't lock their homes, they don't lock their briefcases. Simply having it inside the smartphone

protected on the person is enough to trigger the Fourth Amendment, and I think to sustain the arguments I've advanced. If I could reserve the rest of my time. CHIEF JUSTICE ROBERTS: Mr. Dumont. ORAL ARGUMENT OF EDWARD C. DUMONT ON BEHALF OF RESPONDENT MR. DUMONT: Thank you, Mr. Chief Justice, Thank you, counsel.

and may it please the Court: As Mr. Fisher has said, if Mr. Riley had been carrying physical photographs in his pocket at the

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time of his arrest, there's no dispute that arresting officers could have looked at those photographs to see whether they contained evidence of crime. Now, what

would have been reasonable in that situation does not become constitutionally unreasonable simply because Mr. Riley instead carried his photographs in digital form on a smartphone. The shifted digital format does

not make the photographs any less his papers or effects -JUSTICE SOTOMAYOR: Counsel, in one of our

Court decisions in the past, a series of justices asked -- or noted that many of our rules were based on practical considerations. Practically speaking, a That is

person can only carry so much on their person.

different because carrying a billfold of photographs is a billfold of photographs. It's, you know, anywhere But now

from one to five generally and not much more.

we're talking about potentially thousands, because with digital cameras people take endless photos and it spans their entire life. You don't see a difference between the two things? What -- what has now become impractical. A GPS

can follow people in a way that prior following by police officers in cars didn't permit. MR. DUMONT: We certainly see a distinction,

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and we certainly see the possibility that in some cases there could potentially be a constitutional difference. What we don't see is that in this case -- on the facts of this case or anything like it, like the ordinary case, there is a constitutional difference from those phenomenon. The theory -By the way -The theory, even if I'm

JUSTICE SOTOMAYOR: MR. DUMONT:

carrying only five photographs or if I'm carrying two letters as was the case in the Chiagles case, for instance, that Judge Cardozo decided in the '20s, they are likely to be very personal, very private photographs. So I'm not sure that the expansion of

volume increases the invasion of privacy. JUSTICE KAGAN: Mr. Dumont, on your argument

and on the government's -- the Solicitor General's principal argument, too, a person can be arrested for anything. A person can be arrested for driving without And the police could take that phone and

a seat belt.

could look at every single e-mail that person has written, including work e-mails, including e-mails to family members, very intimate communications, could look at all that person's bank records, could look at all that person's medical data, could look at that person's calendar, could look at that person's GPS and find out

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every place that person had been recently because that person was arrested for driving without a seat belt. Now, that strikes me as a very different kind of world than the kind of world that you were describing where somebody has pictures of their family in a billfold. Doesn't it strike you that way? I think the answer that one can

MR. DUMONT:

always think of marginal cases where there might be concern. typical -JUSTICE KAGAN: marginal case. MR. DUMONT: JUSTICE KAGAN: It is not the -Your argument and the I don't know why this is a It is not the core case, it is not the

Solicitor General's principal argument applies to any arrest. And it applies to everything on a cell phone. That's

People carry their entire lives on cell phones. not a marginal case. it? MR. DUMONT:

That's the world we live in, isn't

We hear that repeatedly.

The

facts of this case are not somebody's entire life on a cell phone. This cell phone had a handful of contacts.

I don't think it's in the record, but what we understand is there were 250-some odd contacts, there were about 59 photos and there were perhaps 42 videos that ranged from

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30 to 45 seconds.

Maybe a minute each. The Court is to make a

JUSTICE GINSBURG:

rule not for this particular case, but for this category of cases. And I think what Justice Kagan pointed out is That is, take an offense like

very nervous concern.

failing to buckle up, even driving under the influence, not gang crimes, which is what we have in this case. It's your rule, then, that the cell phone is fair game no matter what the crime, no matter how relatively unimportant the crime. Is it all misdemeanors, all

misdemeanors and that opens the world to the police. MR. DUMONT: It is true that the Court

typically and properly, in this area, draws categorical lines and that is what the Court said in Robinson it was doing. Now, it also is true the Court has repeatedly

said that those lines are drawn based on the generality of cases. They are not drawn based on the marginal case

where the hypothetical potential problematic -- and this case is in the heartland. JUSTICE KAGAN: It's a violent crime. Well, Mr. Dumont, I guess

what I'm trying to suggest to you is that you call it marginal, but, in fact, most people now do carry their lives on cell phones, and that will only grow every single year as, you know, young people take over the world.

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(Laughter.) JUSTICE KAGAN: marginal case. I mean, that's not a They

That's what -- they're computers.

have as much computing capacity as -- as laptops did five years ago. And -- and everybody under a certain

age, let's say under 40, has everything on them. MR. DUMONT: generality of cases. I think you need to look at the And in the generality of cases,

first of all, you will not be dealing with minor crimes. You'll be dealing with serious crimes. And second,

you'll be dealing with police who are -- undo their job by booking -JUSTICE KENNEDY: Are you saying we're just Because if Well,

resting on the discretion of the officer?

that's so, then that leads to the next question. if that's so, then we'll get a warrant. MR. DUMONT:

I'm saying that you're -- you

are trying to draw lines that can be applied by the officer in the field and often when there's not time to get a warrant either because there's a need to know the information now or because -JUSTICE KENNEDY: Well, let's leave -- let's That -- that's

leave exigent circumstances out of it. an easy case.

You're not arguing for exigent

circumstances here.

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MR. DUMONT:

What I'd say is that -- to go

back to Justice Scalia's point -- our argument is that the same things that Mr. Fisher concedes, the same interests that Mr. Fisher, I think, concedes justify the search of the person and the seizure of the phone, which are the exigent circumstances type arguments. In other

words, they are the need to protect officer safety and the need to preserve evidence. don't know with a phone. And the fact is you

The officer doesn't know with

a phone whether there's a safety concern or whether there's an evidentiary concern without looking at the phone. CHIEF JUSTICE ROBERTS: Have there ever

been -- is there any basis for the generality that there's a safety concern? Do you have a case where the

-- certainly not where the phone exploded, but when the phone was used to trigger a device or anything like that? MR. DUMONT: We don't have a specific case.

What I can point you to -CHIEF JUSTICE ROBERTS: general case? MR. DUMONT: Well, I can point you to, I don't think it's cited There's one where Do you have a

here's a case from California. in the briefs.

It's called Natoli.

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there's a late night arrest.

It -- it starts with a

speeding ticket, and it -- off the highway late at night. It develops that, you know, maybe there's more

going on and the person looks to be under the influence. Taken out of the car. a gun. Then it looks like there might be The first

The officer looks at the cell phone.

thing he sees when he turns the phone on is a picture of what appears to be the driver standing with two assault rifles, arms akimbo like this, posing with his assault rifles. Now, I would say that that changes the

situational awareness of the officer in that situation and provides valuable information that was necessary at the time and could not have been gotten later at the station house. CHIEF JUSTICE ROBERTS: to do with my question about a bomb? MR. DUMONT: to do with safety. I'm merely saying that it has So no, I can't point you to a case What does that have

where they stopped Timothy McVeigh, looked at his phone and saw some notes about bomb making. that case. JUSTICE SOTOMAYOR: I would assume you need I can't give you

to operate the phone to set off the bomb, so that once the police have the phone the bomb is not going to be set off.

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MR. DUMONT:

That is true.

It's also true In

of all the objects in all the Court's prior cases.

other words, once in Robinson the police had secured the cigarette pack, there was no question, whether there was a razor blade in it or just heroin -JUSTICE SOTOMAYOR: MR. DUMONT: Could I just ask you --- that neither the evidence --

the evidence was not going to be destroyed and the weapon was not going to be used. JUSTICE SOTOMAYOR: Could I ask you a We're talking But your

question about the extent of your theory?

about smartphones, which are minicomputers.

theory would apply to iPads, computers, anything that's, for example, sitting next to a person in a car, at their desk if they are arrested at their desk, anywhere if they are carrying it in their hand because you see a lot of people carrying the iPad or something comparable, a tablet of some sort. Your theory would permit a search

of all of those things. MR. DUMONT: Our theory extends to objects

that are on the person or immediately associated with, for instance in a purse. It doesn't necessarily extend The Court has drawn

to things that are sitting nearby. a clear line there. It's --

JUSTICE GINSBURG:

Well, how would you?

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What is the rule?

You're saying on the person.

Suppose

it's in the car in a holder or suppose it's in the passenger's seat? Are you saying that's -- you don't You only want to

want to express an opinion about that? talk about what's in somebody's pocket? MR. DUMONT:

I'll say I think the Court has If it's on

drawn different rules for that situation.

the car seat and if the person's been removed from the car, then under Gant if there's reason to think there might be evidence of the crime of arrest on the phone they can search it and if there's not they can't. That's the rule the Court drew, but it's a different rule Under Robinson. JUSTICE KAGAN: my laptop in my backpack. MR. DUMONT: And if your backpack is on your Well, suppose I'm carrying

back when you're arrested, yes, we think that's -- we think that's included. So let me go back to this volume question, because there are two things about a cell phone that might justify some sort of a special rule. There's the

volume question and then there's the connectivity and networking question. Now, as to the volume question, first of all we don't clearly have it here, but I concede that we

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could have it in other cases.

And what they seem to be

really concerned about is the idea that if you have enough information of enough different kinds on this device and the police spend enough time looking at it, they could build the kind of near-remarkable portrait that some of the Justices alluded to in Gant, or, sorry, in Jones, that -- that really would be qualitatively different from what has ever been done before. Now, there are differences from Jones. That

was government surveillance and this is some choice the person has made to keep a certain amount of information on a phone and then to have it in his pocket. We think

there's a possibility you could get to that kind of qualitatively different search, but it is miles away from this kind of case and from the heartland case. JUSTICE BREYER: possibilities: So there are three

Possibility one, smartphone, no, get a Possibility two,

warrant, unless exigent circumstances.

yes, it's just like a piece of paper that you find in his pocket. sometimes no. Or possibility three, sometimes yes, All right, which of those three is yours? Our possibility -- our position

MR. DUMONT:

is that the core information like this -- that is contacts, photographs -JUSTICE BREYER: No, no, I mean of my three

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choices.

I mean, call the first choice never except

exigent without a warrant; always, you don't need a warrant; or three, somewhere in between. three choices is yours? MR. DUMONT: explanation. JUSTICE BREYER: we're in between. MR. DUMONT: JUSTICE BREYER: In between. Okay. Now It's in between with an Which of the

Then I get to my follow up question. The explanation -My follow up question is,

please tell me what your in-between rule is? MR. DUMONT: Right. And my in-between rule

with the explanation is that for information that is of the same sort that police have always been able to seize from the person, that includes diaries, letters, all other kinds of evidence, purely evidentiary, photographs, address books, for evidence of that same sort, the same rule should apply. JUSTICE KAGAN: that, Mr. Dumont. MR. DUMONT: Well, I don't understand

Everything -The digital format should not

make a difference, and I would leave for --I would leave for a different day -- sorry, but the last explanation to this is I would leave for another case -JUSTICE KAGAN: Mr. Dumont --

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MR. DUMONT: volume --

-- the question of whether the

CHIEF JUSTICE ROBERTS: Kagan has a question. JUSTICE KAGAN: don't understand.

I'm sorry.

Justice

Mr. Dumont, I guess I just I mean, All All your

You said if it could be.

everything could be reduced to a piece of paper. your bank records, you could have them on you.

medical records, you could just happen to have them on you. I mean, that would be so of absolutely everything,

wouldn't it? MR. DUMONT: The bank records, of course,

the police can get from the bank because they're the bank's records, right, with a subpoena, not with -- not with a search warrant. people -JUSTICE KAGAN: Well, I think that the So to the extent that a lot of

notion that you could get them legally in some other way has never justified an illegal search otherwise. MR. DUMONT: No, but I think it goes to the

question of how sensitive is this information that we're being told is now routinely stored on -JUSTICE BREYER: I say: Your rule is sometimes. And you say if it is So

Sometimes; what's that?

the kind of thing that the police could have searched

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for if it wasn't on the computer, then they can search for it on the computer. Now, since they can search for

everything in your pockets before when it isn't the computer, then why isn't yours everything? I mean, by

the way, they don't know whether a call is or is not going to turn out to be evidence when it's in your trash box if that's, or wherever you put it, I don't know. They don't know that 'til they read it. So I guess what you're saying is I thought it was category two, sometimes, but really it's category three, always. Now, why am I wrong? I think he inverted two and

JUSTICE SCALIA: three, but -JUSTICE BREYER: think. MR. DUMONT:

That gives you time to

If the police are looking for

-- have a legitimate investigative purpose, they're looking at the information on the -- to see whether there is evidence of the crime of arrest or of another crime, it seems to us that they should, at a minimum, be able to look at the same kind of information they could have looked at in any other previous context, the address book, the contacts, the phone numbers. CHIEF JUSTICE ROBERTS: So but that's a

significant concession on your part, isn't it, because

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the smartphones carry a lot of information that would not have been the sort of thing police could look at before. GPS tracking information, the police could So you are saying that

never have gotten that before. is protected? MR. DUMONT:

I'm not saying it's protected.

I'm saying I think it raises a different set of issues. JUSTICE KENNEDY: It seems to me that in

order to try to give some answer to Justice Kagan's concerns that maybe the distinction ought to be between serious and nonserious offenses -- offenses. think that exists in our jurisprudence. I'm wrong. MR. DUMONT: I think that's correct. The Now, I don't

Correct me if

Court has previously declined to draw that line. another -JUSTICE BREYER: By the way, GPS

information, I don't want to admit it, but my wife might put a little note in my pocket". Steven, remember, turn

right at the third stoplight, proceed three blocks forward. Of course you could have looked at information

that showed where you had been and where you were going as long as it was on paper. does your rule help? CHIEF JUSTICE ROBERTS: The GPS would see if Now it's in a GPS. So how

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he did, in fact, turn right at the thing or had gone somewhere else. MR. DUMONT: I think the -- again, we can

conceive of situations in which the amount of information and the kind of search would lead to a qualitatively different result. JUSTICE ALITO: We think that it --

You could amend your answer But

and it's -- the answers are for you, not for us.

you could amend your answer to say not just anything that somebody could have had. The person could have had

a diary that records every place the person has ever gone in the last year, it's theoretically possible. But

you could say something that has a realistic analogue in the predigital era. We have a similar -- a problem here

that's similar to the problem in the Jones GPS case. You have a rule of law that was established in the predigital era and now you have to apply it in the digital era or you're asked to apply it in the digital era where the technology changes a lot of things. if there is a close analogue in the digital era to something that would have been allowed in the predigital era, that may be a different story. MR. DUMONT: We certainly think that's right But

and we think that that covers, you know, the information that was at issue here, the photographs, the short

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videos.

It certainly covers address information,

contact information, messages, text messages. JUSTICE SCALIA: But you're not willing to

limit -- you're not willing to limit your position to searches that either are in order to protect the officer or in order to preserve evidence or, number three, in order to find evidence of the crime of arrest. not willing to limit it that way? You would say You're

whatever is on the person, you can -- you can search. MR. DUMONT: We think of the available

limits that is by far the best historically based and the most plausible one. So to say that -- and because

the cases, the old cases, you pointed out that -JUSTICE SCALIA: But that gets you into the

arrest for, you know, for not wearing a seat belt, and it seems absurd that you should be able to search that person's iPhone. person's iPhone. You should be able to search that And you can avoid that if you -- if

you say, look, at the vast majority of cases, this is not going to be a problem, unless the officer can reasonably be looking for evidence of the crime of arrest. That will cover the bad cases, but it won't

cover the -- you know, the seat belt arrest. MR. DUMONT: We think that that could be a

perfectly reasonable ruling, and there's precedent in

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the Court, obviously, for that rule. we would say about that.

There's two things

First, it ought to be an

objective standard in line with all of this Court's Fourth Amendment jurisprudence. It shouldn't depend on

what exactly was written down on the -- on the booking sheet. It should be was there probable cause to arrest

or what crimes was there probable cause to arrest for, and it also should include a plain view concept -JUSTICE BREYER: analogue with photos. pre-digital age. Or how -- there's an The arrested person has photos, On

Of course you can look at them. Absolutely analogous,

the phone there are photos. except there are 10,000. history in photos. MR. DUMONT: JUSTICE BREYER:

It's indeed his entire life

All right. On your rule, can the

policeman look at the photos by analogue or not, because there are 10,000. MR. DUMONT: look. In practice -JUSTICE BREYER: What we have is, by the I think there Okay? What's the answer? In theory, yes, the police can

way -- you understand where I'm going.

are very, very few things that you cannot find in analogue to in pre-digital age searches. And the

problem in almost all instances is quantity and how far

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afield you're likely to be going. rule? MR. DUMONT:

Why is that your

The fundamental doctrinal

basis, rational basis of the Robinson rule, I think, is that the fact that arrests -- this is what Justice Powell said and Justice -- well, the fact of the arrest necessarily and legitimately largely abates the privacy interest of the individual and his person and anything he or she has chosen to carry on the person. Now, modern technology makes it possible for people to choose to carry a great deal of information. But that doesn't change the fact that the reasonable expectation, if a person is subject to custodial arrest, is that the police will search the person and look at things that they find -JUSTICE KAGAN: Mr. Dumont, is -- are you

saying, essentially, that nobody has any expectation of privacy, or that somebody has a dramatically reduced expectation of privacy in anything that the person actually wants to keep on them at all times? In other

words, one has to keep one's cell phone at home to have an expectation of privacy in it? MR. DUMONT: all. No, we're not saying that at

But what we are saying is that people do make And the

choices, and those choices have consequences.

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consequence of carrying things on your person has always been that if you are arrested, the police will be able to examine that to see if it is evidence of crime. CHIEF JUSTICE ROBERTS: Mr. Dreeben? ORAL ARGUMENT OF MICHAEL R. DREEBEN FOR UNITED STATES, AS AMICUS CURIAE SUPPORTING RESPONDENT MR. DREEBEN: please the Court: I think that it may be helpful to the Court, before exploring possible alternatives to a categorical Robinson rule, to at least briefly understand why there is a categorical Robinson rule and how cell phones implicate many of those concerns. The categorical Mr. Chief Justice, and may it Thank you, counsel.

Robinson rule responded to the fact that when a person is carrying something on their person and they are subject to a legitimate probable cause arrest, their expectations of privacy are considerably reduced. eliminated, but considerably reduced. And the government, on the other hand, has several very compelling interests at the moment of arrest that are vindicated by conducting a thorough search of the person and the things he has. the destruction of evidence. It avoids Not

It protects officer

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safety.

And it allows the discovery of evidence that's

relevant to the crime of arrest to enable prosecution. JUSTICE GINSBURG: But, Mr. Dreeben, if

the -- the understanding was, when there's time, get a warrant. So here, you can seize the phone and you can

secure the phone, and you could go to a magistrate and within an hour get permission to search. But what is It's

the reason for cutting out the magistrate here?

not -- the instrument itself is not going to be in any danger because the police have taken it and they've disabled it. So I don't understand why we cut the

warrant out of this picture. MR. DREEBEN: Justice Ginsburg. So several answers to that, The first is that you could probably

say the same thing about almost everything that is seized under Robinson and Edwards. Once it's in the

police's hands, they can throw it in the back of the patrol car in the trunk, and it would be safe and they could go get a warrant. But the balance has always been

struck at the moment of arrest to allow the officers to fulfill the compelling interests in the matters that I've previously described. The second, and I think very critical thing about cell phones is they do differ in the amount of information that a person can carry on them and the

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amount of revelation about a person's life. true.

That is

They also differ in that they greatly facilitate They contain a great deal of

criminal activity.

evidence, and most critically, they are subject to destruction in a way that ordinary physical items are not. Even if an officer has a cell phone in his hand,

he cannot guarantee, unless it's disconnected from the network or somehow protected from the network, that there won't be a remote wipe signal sent to the phone that will wipe its data. CHIEF JUSTICE ROBERTS: where that has happened? MR. DREEBEN: I have anecdotal reports from Do you have cases

the F.B.I. that that has happened, that they have looked into the question of to what extent can you protect a phone through the use of things like Faraday bags. think one of the important things to notice, if you throw a phone into a Faraday bag, which is supposedly going to be able to block network signals, when you open it up, it has to be similarly shielded or it will pick up a signal from a cell tower, and that will wipe the phone. And the F.B.I. tried to build a Faraday room in I

a building that they later discovered Verizon had put up a cell tower on it, and that cell tower put out a strong enough signal to go right through the Faraday room.

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JUSTICE BREYER:

We've had a couple of

States where this has been so, where they've had a rule that you can't search, for Michigan, I think, and Vermont. And are there any instance out of those States

where these scenarios have taken place? MR. DREEBEN: I can't speak, Justice Breyer,

for the experience in those States. JUSTICE BREYER: take it you don't know. MR. DREEBEN: information about that. JUSTICE BREYER: All right. So isn't this a I don't have any access to the You don't know then. I

problem that might be postponed because we have warring technologies, et cetera? And is it -- you're saying now

we should allow searches of all cell phones because there might be a technology that hasn't yet in fact been used in any of the States that have this rule. sounds a little hypothetical. handle it. MR. DREEBEN: Well, I think that there is That

I'm not quite sure how to

clearly the technology available and growing technology to wipe phones remotely. But the other critical problem

that comes back to Justice Ginsburg's point about getting a warrant is encryption technology is increasingly being deployed in cell phones. That is

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something that clearly is on the rise.

And when a phone

is turned off or the lock kicks in and the phone encrypts, it can be almost impossible to get into it. JUSTICE SOTOMAYOR: How about putting -- let

me stop you, because you were making that argument in your brief, and I have three related questions. Okay?

Why can't you just put the phone on airplane mode? MR. DREEBEN: JUSTICE SOTOMAYOR: MR. DREEBEN: Can I answer that one first? Yes. First of all, it is not always

possible to find airplane mode on all the 500, 600 models of phones that are out there. The officer has a Say he

lot of things to do when he arrests suspects.

arrests five suspects in a car and they each have three cell phones. Trying to find and put each one of them

into airplane mode and then go the further step and -JUSTICE SOTOMAYOR: You're -- you're

confusing me, because if you haven't searched on the scene, then the wipe is going to happen. If you've had

enough time at the precinct to put it on airplane mode, the wipe hasn't happened. MR. DREEBEN: true, Justice Sotomayor. JUSTICE SOTOMAYOR: I'm a little confused Well, that's not necessarily

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about what this argument is.

Either you do it at the

scene and you protect the phone -MR. DREEBEN: JUSTICE SOTOMAYOR: Yes. -- or you do at the

station, and you have enough time to get the warrant by putting it on airplane mode. MR. DREEBEN: Well, you don't necessarily

have enough time to get the warrant if you do it at the scene. That -- that's certainly true. I think even -Put

JUSTICE SOTOMAYOR: it on airplane mode. MR. DREEBEN:

I don't disagree.

Even if you bring it back --

the assumption that we're going to have airplane mode and that the Court should craft a constitutional rule around airplane mode assumes that cell phones are not going to be able to be used in airplanes in the next five years and that manufacturers will continue to make an easily available button for airplane mode. I don't

think the Court should found a constitutional ruling on that assumption. JUSTICE SOTOMAYOR: I -- I don't disagree

with you, but you're asking us for constitutional principle based on technology that might or might not do something in one or more cases, but not in the general --

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MR. DREEBEN:

I think what I'm trying to

suggest, Justice Sotomayor, is the traditional justifications for search-incident-to-arrest include the potential for destruction of evidence. real today. rule. That is very

It's Petitioner who's asking for a new

We're asking for the application of the Robinson

rule, and if the Court is not willing to apply the Robinson rule, then primarily, I think the best rule to apply would be the -JUSTICE KENNEDY: that's not quite accurate. Well, but that's not -What would you do under the

Robinson rule with an attorney's briefcase? MR. DREEBEN: The attorney's briefcase may

present particularized problems because of attorney-client privilege. JUSTICE KENNEDY: And -- and doesn't that

present the exact problem that every cell phone has? MR. DREEBEN: JUSTICE KENNEDY: quite works for you. I -- I was referring -JUSTICE KENNEDY: works for you. MR. DREEBEN: privilege rule. I was referring to the I don't think that quite No. I was referring -So I don't think that

The lower courts that have looked at

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it; this Court has not.

Lower courts that have looked

at the question have said that if a person is arrested holding a briefcase, the police can open the briefcase, whether locked or unlocked, and look at its contents. They can't just go through the contents for prurient interest. They can look, however, for evidence that's relevant to criminal activity, and they do that in a way that is minimally invasive of privacy. doing it for the sake of doing it. evidence. JUSTICE KENNEDY: Well, the tax return They're not just

They're looking for

that's on -- some -- some cell phones have tax returns, so you have the tax return of the jaywalker, looking for a crime. MR. DREEBEN: Yes, and I -- and I -- I would

acknowledge, Justice Kennedy, that if the Court is looking for a rule that limits the ability of police to search cell phones, because cell phones are different from paper items in some respects, but not all, that the most reasonable rule to apply would be one that says when there is reason to believe that there's evidence of the crime of arrest on the phone, the officers can look for that. When there is not, they can't. That will --

JUSTICE KAGAN:

Can I ask you a question

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about that, Mr. Dreeben, because given the variety of things that these cell phones have in them, it seems as though that's -- you know, it sounds good as a limiting principle, but it ends up you can imagine in every case that the police could really look at everything. So I'll give you an example. like this case. It's sort of

Somebody is arrested for a gun crime

and now we're going to look at all the various things that might be related to a gun crime. So whether he's

bought guns, whether -- you know, what -- what -whether he's done searches for gun stores. His e-mails

might something say something about gun possession or gun purchase. gun. He might have photographs of him with a

You know, the whole range of things could relate

to that crime, couldn't it? MR. DREEBEN: Justice Kagan, I would

acknowledge that your reasoning is correct in certain circumstances and for certain crimes. It would not be

the case for a jaywalking crime or a bar fight or many other of the minor crimes, seat belt violations, that are posited on the other side of the equation for Respondent's or Petitioner's narrower approach to cell phone searches. But I do think that a couple of things are worth thinking about. First, in a serious offense like

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a firearms offense in this case, a drug offense in Wurie, if the police didn't -- went, got a warrant, they would be looking at all the same things, because the only way to execute the warrant on the phone would be to engage in at least a cursory search of everything on the phone to see whether it related. JUSTICE KAGAN: Well, they would be looking

at the same things, but the whole idea of a warrant is that a neutral magistrate tells you that you can look at those things and has an opportunity to limit it in whatever way the neutral magistrate feels is appropriate -MR. DREEBEN: JUSTICE KAGAN: MR. DREEBEN: Well, I --- and that's a protection. I -- I'm not sure that I would

go so far as to say the neutral magistrate can narrow the warrant in any way that he sees appropriate. This

Court's decisions in Grubbs and Dalia say that it's not appropriate for the magistrate to prescribe the manner of executing the search. But I think the more fundamental point, and this is why I tried to start with the basic bedrock of Robinson, is that there is a different balance -CHIEF JUSTICE ROBERTS: MR. DREEBEN: Go ahead, please.

There is a different balance

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at the moment of the arrest.

At that moment society's

interests are at their apogee in locating evidence relating to the crime of arrest and apprehending related suspects, and the suspect has a highly reduced privacy interest. CHIEF JUSTICE ROBERTS: 4 minutes, Mr. Fisher. REBUTTAL ARGUMENT OF JEFFREY L. FISHER ON BEHALF OF THE PETITIONER MR. FISHER: Thank you. Thank you, counsel.

I think I heard about four or five different proposed rules that I want to just go through, each of them, one at a time. First, the State talked about a, quote, "fundamentally different rule," and I think Justices have already figured out what we say at page 17-18 of our reply brief, which is that would sweep in virtually everything on the phone. To the extent it wouldn't, you'd have a really difficult struggle on a case-by-case basis to answer the very difficult question whether any particular app had fundamentally different information that existed in the nondigital world. I also heard a suggestion, that, well, if a laptop or a smartphone is on somebody's person, that's

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different than if it's sitting next to them.

That's not

correct if what the government says about its Chimel -about passwords and wiping satisfies Chimel. Remember,

Chimel gives authority to search and seize without a warrant anything in the grab area if there's a destruction argument. So the person who's arrested

sitting at his desk at the office, reaching area from his computer would be open to a full search under the government's rule. There was also discussion about the exigencies at the scene of an arrest, needing to prevent a remote wipe, preventing a password from kicking in. The first thing to make sure you understand is those arguments can apply only at the scene. They don't apply

in this case, where an officer takes the phone back to the police station and 2 hours later searches through it as his -- at his leisure. So all the arguments about at

the scene and what the officer needs to be able to do at the scene can be left for another case. And I think Justice Breyer is exactly right. At the very best what the government has shown is that there may be certain tightly limited circumstances where exigent circumstances would apply. And I want to say a just quick thing on the password question in particular, which we didn't talk

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about but may come up in the next argument.

Pages 12 to

14 of our reply brief, we outline how highly unusual as a factual matter it would be for a smartphone to be seized while it's still unlocked and for an officer not to be able to address concern at the scene that it might lock later. And it's also worth noting that in a

footnote we attach, the government is arguing in lower courts that even if it does lock, that the Fifth Amendment does not give the person the opportunity to refuse to divulge the password in -- in response to a warrant. So the password argument doesn't have any play if the government wins the argument its making in the lower courts. Justice Kennedy, you suggested the possibility of distinguishing between serious and nonserious offenses. I think, with all due respect,

this Court's decisions in Robinson and Atwater, where that issues was squarely presented, preclude that kind of a -- a determination for all the reasons the government argued in those cases. And then finally, Justice Scalia, you, I think, had mentioned a couple times the Gant principle as applied to this case, evidence that you think you might find on a phone. Well, there's two profound

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problems with that.

The first is, as the Court

recognized in Kyllo, you need to be sure to protect the amount of privacy people had at the founding. And as I said in my opening, the fact that somebody might incidentally have an item on his person, even in the rare case, diary or address book, are leagues away from the kind of information people have now that were stored in the home and that were sacrosanct at an arrest, and that's what the thread throughout history says is an arrest cannot be an occasion to do that kind of a search. And, Justice Kagan, you're exactly right. If you run the Gant test through the world of crimes, the government might be able to identify a crime here or there that would be difficult to make an argument about. But lots of minor crimes, like speeding, as we point out in our brief, DUI, littering, all kinds of minor crimes, the person can make a fairly convincing argument sometimes that evidence on the phone would be relevant to that crime of arrest. And so I think that brings me to where I want to end, which is understanding what the rule the government propounds would do in terms of just ordinary police work. Remember, this case starts with a traffic It is everyday

stop for an expired license plate.

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police work that traffic stops are the beginning of criminal investigations and a leverage point into searches. If you adopt a rule that says, even a Gant rule, that says if you can make an argument that evidence on the phone would be relevant to the crime of arrest, take the suspended license, you may have an e-mail from the DMV telling you you better come in and renew. If that opens up every American's entire life to

the police department, not just at the scene but later at the station house and downloaded into their computer forever, I think you will fundamentally have changed the nature of privacy that Americans fought for at the founding of the Republic and that we've enjoyed ever since. CHIEF JUSTICE ROBERTS: The case is submitted. (Whereupon, at 11:33 a.m., the hearing was adjourned.) Thank you, counsel.

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A $10,000 16:11 a.m 1:13 3:2 60:18 abates 45:7 ability 24:24 53:18 able 9:21 22:12 25:8 38:14 40:21 43:16,17 46:2 48:19 51:16 57:18 58:5 59:14 above-entitled 1:11 absolutely 21:7 39:10 44:12 absurd 43:16 accept 4:25 access 11:1 49:10 accessible 11:20 account 10:11 10:12,25 11:13 16:11 accurate 6:2 52:11 accused 6:6 acknowledge 53:17 54:17 acknowledges 20:7 activity 48:3 53:8 ad 9:1 address 11:10 38:17 40:23 43:1 58:5 59:6 addressed 24:15 adjourned 60:19 administer 10:21 administrability 11:16 administrable 9:23

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B B 4:12 back 5:19 18:19 27:3 33:2 36:17,19 47:17 49:23 51:12 57:15 back-end 16:17 backpack 36:15 36:16 bad 43:22 bag 48:18 bags 48:16 balance 26:6 47:19 55:23,25 bank 29:23 39:8 39:12,13 bank's 39:14 banking 16:7,10 16:10 bar 54:19 based 28:12 31:16,17 43:11 51:23 basic 55:22 basis 16:14 33:14 45:4,4 56:20 beauty 20:17 bedrock 55:22 bedroom 25:12 beginning 4:25 5:8,9,10 60:1 behalf 1:15,18 2:4,7,14 3:7 27:21 56:9 behaved 13:1 believe 14:14,20 22:6 53:22 belt 29:19 30:2 43:15,23 54:20 benefit 16:15 best 5:15 23:2 43:11 52:8 57:21 better 60:8

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circumstance 3:12 11:22 21:25 22:19,21 24:18 25:14 circumstances 21:12,19 22:2 22:5,9,13 23:20 32:23,25 33:6 37:18 54:18 57:22,23 cite 22:25 cited 6:25 33:24 citizen 13:18 classic 22:8 clear 35:24 clearly 36:25 49:21 50:1 client 7:16 client's 12:3 close 42:20 cloud 11:20 coincide 16:12 come 58:1 60:8 comes 7:10 49:23 coming 20:23 25:5 communicatio... 29:22 community 4:2 compact 18:23 comparable 35:17 compelling 46:22 47:21 compound 11:21 computer 40:1,2 40:4 57:8 60:11 computers 32:3 35:13 computing 32:4 concede 36:25 concedes 33:3,4 conceive 42:4 concept 44:8

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evidentiary 33:11 38:16 exact 9:18 52:17 exactly 10:1 44:5 57:20 59:12 examine 7:21 46:3 examined 4:24 11:25 examining 24:21 example 7:10 11:9 14:13 22:9 35:14 54:6 excuse 13:8 24:20 execute 55:4 executing 55:20 executive's 27:1 exigencies 21:5 21:6,8 57:11 exigent 21:12,19 21:25 22:9 23:20 32:23,24 33:6 37:18 38:2 57:23 existed 56:23 exists 41:12 expansion 29:13 expectation 26:18 45:13,17 45:19,22 expectations 46:19 experience 49:7 experts 21:13 expired 59:25 explain 19:9 explanation 38:6,9,13,23 exploded 33:16 exploratory 24:2 exploring 46:12 explosive 9:9 express 36:4

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fight 9:13 54:19 figure 15:5 figured 56:16 filed 21:14 22:7 files 14:23 19:25 finally 58:22 find 9:6 22:23 23:2,3,7 25:9 29:25 37:19 43:7 44:23 45:15 50:12,16 58:25 F fine 9:16 F.B.I 48:14,22 fingerprints Facebook 10:10 4:10,12 10:12,25 finish 19:12 facilitate 48:2 firearms 55:1 fact 10:18 12:24 first 3:4 12:5 13:7,13 27:8 13:17 21:9,19 31:22 33:8 24:8 32:9 34:6 42:1 45:5,6,12 36:24 38:1 46:16 49:16 44:2 47:14 59:4 50:9,11 54:25 factors 4:6 56:14 57:13 facts 22:1,4 29:3 59:1 30:21 FISCHER 15:12 factual 3:11 Fisher 1:15 2:3 58:3 2:13 3:5,6,8 failing 31:6 4:3,17 5:4,18 fair 11:7 23:16 5:21 6:1,10,19 23:23 31:8 6:23 7:23 8:6 fairly 59:18 8:21 9:11,16 family 29:22 10:15,20 11:7 30:5 12:4,17,20 far 43:11 44:25 13:4,15 14:13 55:16 15:8,16,21 Faraday 48:16 16:7,13 17:20 48:18,22,25 18:14,24 19:11 favor 23:22 19:17,20 20:12 fear 7:7 20:16,25 21:4 Federal 20:6,8 21:7 22:1,15 23:17 22:18 23:4,7 feels 55:11 23:18,25 24:9 fellow 14:19 24:13,22 25:1 field 9:24 15:10 26:5,15,19 32:19 27:11,24 33:3 Fifth 58:8 33:4 56:7,8,10

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hand 9:12 23:1 24:16 35:16 46:21 48:6 handful 30:22 handle 49:19 hands 47:17 happen 21:1 39:9 50:20 happened 48:12 48:14 50:22 happens 14:24 15:13 16:15 19:15 hard 15:4 25:14 hardcopy 8:3,14 hear 3:3 30:20 heard 56:11,24 hearing 14:19 16:17 60:18 hearings 16:22 heartland 31:19 37:15 held 24:17 help 41:24 helpful 46:11 heroin 35:5 high 23:4 highly 25:13,13 56:4 58:2 highway 34:2 historical 6:15 historically 6:8 43:11 history 5:23 44:14 59:10 hoc 9:1 holder 36:2 holding 53:3 home 25:11 45:21 59:8 homes 27:12 Honor 6:10 hope 25:8 hour 47:7 hours 57:16 house 3:15 17:16 18:7

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kill 21:22 kind 14:21 16:24 17:22 18:4,25 20:24 30:4,4 37:5,13 37:15 39:25 40:21 42:5 58:19 59:7,11 kinds 10:6 14:21 37:3 38:16 59:17 know 11:4 16:5 20:10 21:20,22 21:24,24 22:13 27:6 28:16 K 30:11 31:24 Kagan 21:4 32:20 33:9,9 29:15 30:11,14 34:3 40:5,7,8 31:4,20 32:2 42:24 43:15,23 36:14 38:19,25 49:8,9 54:3,10 39:4,5,17 54:14 45:16 53:25 Kyllo 18:6 59:2 54:16 55:7,14 L 59:12 Kagan's 41:9 L 1:15 2:3,13 keep 7:5 14:20 3:6 56:8 19:14 20:19 lab 27:4 26:11 27:5 laptop 36:15 37:11 45:20,21 56:25 keeping 17:9 laptops 32:4 20:7 largely 45:7 Kennedy 3:21 late 34:1,2 4:8,21 5:4,14 Laughter 24:10 5:19 9:4,13,14 32:1 12:14,18,19,22 law 6:5 42:16 13:12,16 14:6 lawful 4:19 22:22 23:4,6 lawfully 19:21 23:11,19 26:1 20:1 26:5 32:13,22 lawyer 22:23 41:8 52:10,16 lawyers 24:1 52:19,22 53:12 lead 42:5 53:17 58:15 leads 32:15 Kennedy's 25:6 leagues 59:7 kept 10:24 17:4 Learned 23:1 18:18 25:12,13 leave 25:19 kicking 57:12 32:22,23 38:22 kicks 16:21 50:2 38:22,24

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58:25 59:19 60:6 phones 18:18 21:6 26:3 30:17 31:23 46:14 47:24 49:15,22,25 50:13,16 51:15 53:13,19,19 54:2 photo 19:25 photocopy 19:25 photographs 27:25 28:2,6,8 28:15,16 29:9 29:13 37:24 38:17 42:25 54:13 photos 7:18,21 8:3,4,14,19 10:3,5,24 11:12 12:7 13:24 18:23 28:19 30:25 44:10,10,12,14 44:17 phrased 12:4 physical 7:24 8:7,7,24 9:3 18:18 19:22,22 27:25 48:5 pick 48:20 picture 34:7 47:12 pictures 16:3 18:12 30:5 piece 37:19 39:7 pieces 12:6 pin 8:25 9:8 place 30:1 42:11 49:5 plain 9:12 25:5 44:8 plate 59:25 plausible 43:12 play 58:13 please 3:9 27:23

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quickly 17:3 quite 8:19 23:16 23:22 49:18 52:11,20,22 quote 12:11 56:14 quoted 6:4,11 R R 1:19 2:9 3:1 46:6 raised 16:5 raises 17:5 41:7 range 54:14 ranged 30:25 rare 22:19,20 59:6 rational 45:4 razor 8:24 35:5 reaching 57:7 read 9:8,9 22:24 22:25 40:8 real 10:11 20:3 52:5 realistic 42:13 reality 25:17 really 9:13 18:19 37:2,7 40:10 54:5 56:20 reason 3:25 4:4 7:6 22:13,16 25:9 36:9 47:8 53:22 reasonable 12:23,25 28:4 43:25 45:12 53:21 reasonableness 5:13 reasonably 43:21 reasoning 54:17 reasons 58:20 REBUTTAL 2:12 56:8 recognize 14:5

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Alderson Reporting Company